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The perfectly fit Attorney General

Afua Hirsch wrote in yesterday’s Guardian that the role of Attorney General is unfit for purpose and unsustainable:

In many ways the problem is as simple as this: the job description just does not work. The attorney general is tasked with the provision of independent advice to the government as its chief legal adviser, alongside the political duties of being a member of the government, with superintendence of the prosecuting authorities thrown in for good measure. It is a combination so conceptually challenging that even the office-holders struggle with it.

That’s fair enough as far as it goes. But she bases much of her criticism on the controversies that dogged Lord Goldsmith during his tenure: his advice on the invasion of Iraq, of course; the SFO’s decision not to prosecute BAe for bribery in the al Yamamah case; and “cash for honours”.

The problem is, even if you think his conduct on these three matters shows Lord Goldsmith was the biggest fool and knave ever to hold the office (not my view), none of that calls into question the office itself. Most people have made up their minds that Lord Goldsmith was wrong about Iraq (I’m not convinced he was); but anyway, a non-political civil servant would have been just as capable of being wrong as he was. If anyone thinks government lawyers are immune from ministerial pressure, then they’ve not seen law in government from the inside.

Afua Hirsch’s second indictment of Lord Goldsmith – BAe – proves the point, since the decision to drop the prosecution was actually taken not the Attorney but by the SFO’s director, the civil servant Robert Wardle, who was strongly influenced by the PM’s view on national security. I got that wrong myself at the time, but I did make the point that it was right that someone could be summoned to Parliament for account for the decision immediately. That’s what the Attorney is for.

Finally, I have to defend Lord Goldsmith (who was once my ministerial boss, perhaps I should declare) over “cash for honours”. Yes, his intervention “linked” him to the story. But in fact he sought that injunction at the request of the police, not Downing Street. Anyone who thinks that was an attempt to help Tony Blair has simply forgotten what “cash for honours” was about; the real scandal would have been if Goldsmith had not sought the injunction. Yes, it would have been problematic had he been forced by law to take the decision to prosecute, but that never happened. And he came up with a reasonable solution to that problem – he said he’d instruct external counsel after consulting the opposition, and publish the advice if he decided against prosecution. Whatever you think of Iraq, it really is difficult to accuse him of doing anything wrong over cash for honours.

The current Iraq inquiry may judge Lord Goldsmith. History certainly will. And most people have judged him in their own minds already. But I don’t think it makes sense to turn judgment of the man into an argument for tinkering with the office he used to hold. That’s the sort of consitutional whimmery that makes people think PR would solve the MPs expenses issue.

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  1. I agree. Moreover, if they made the AG a separate civil servant the result would be simply that other members of the cabinet with legal experience would end up filling the practical role sub rosa, as it were.

    There is perhaps an argument for moving some of the roles filled by the AG (eg in my own field the charities role, but the charity commission now does a lot of that anyway -and is thought by many to be too political -) to eg the Treasury Solicitor and the DPP. But someone is ultimately going to end up giving the cabinet advice on policy, particularly major policy issues like this, from the inside. It might, I suppose, be better if in difficult cases they regularly sought outside advice from leading counsel as well before taking their own view.
    .-= Liadnan´s last blog ..I’m sorry, what? And indeed how? =-.

  2. “a non-political civil servant would have been just as capable of being wrong as he was.”

    You are somewhat ingenious in suggesting that the only other alternative would be for the AG to be a civil servant. The AG should be made immune from political pressure and this could be done only by making the office holder to be neither a politician nor a civil servant.

  3. This, ultimately, becomes a discussion about personal standards – intgegrity, probity, honesty and – yes – ability. Goldsmith should be judged by those criteria, not whether he is/was politically acute.

  4. However one looks at this, ordinary people really do not accept that the AG is fully independent of the government which he/she supports politically and which made his/her appointment. The appearance is wrong.

    Interestingly, we had the Appellate Committee of the House of Lords which was undoubtedly fiercely and fearlessly independent of both the executive and the legislature but it had to change because of appearance.

    Appearance and perception matter a great deal. Perhaps more than they should. However, change will have to come just as it did with the creation of the Supreme Court.

    By the way, I was pleased to see the Justices of the Supreme Court at the State Opening of Parliament. Their attendance served to emphasize the links of all branches of government to the Crown.